Project Veritas, which specializes in video from a conservative viewpoint based on hidden camera interviews, sued the New York Times about a year back. This case is still being considered, due to the Times’ claim that Project Veritas’s videos are “deceptive”. One could argue that newsgathering with hidden cameras or microphones inherently deceives itself, but that argument could also be made for mainstream media outlets.
Last month, Project Veritas published an article in the Times about “working with lawyers to gauge its deceptive report practices before running into federal laws”. The article was based on communications between attorney and client that the Times somehow obtained. These communications were also made available online, but then the Times removed them. Although we don’t know the source of the Times communications, a Nov. 22 filing stated that no apparent bribery was involved or any other inappropriate behavior was used in order to get the memoranda.
New York state trial court Justice Charles Wood, who is presiding over the case, concluded this publication of a litigation adversary’s attorney-client-privileged information was improper, and issued preliminary orders barring the Times from further using the information (I oversimplify the procedure here slightly). On Friday, Wood issued a detailed opinion in which he affirmed that Project Veritas must (1) receive all of the Project’s attorney-client memos (Benjamin Barr) and (2) destroy all other copies. (3) Use his best efforts “to retrieve memoranda” “provided to third party, including Bill Grueskin.” [a professor at the Columbia Journalism School],” (4) “not … use the legal memoranda … or information obtained from those documents … for any purposes whatsoever,” and (5) not disseminate the memoranda.
Now the Supreme Court has never decided whether media outlets (or any other speakers) may be barred from publishing improperly leaked attorney-client-privileged information. This issue is most common in criminal cases, where the information could compromise the defendant’s Sixth Amendment rights to fair trials. State Record Co. v. State The Supreme Court of Canada affirmed a temporary restraining injunction in this case. U.S. v. Manuel Noriega (11th Cir. 1991), temporary upholding an order in that line (see Justices O’Connor’s dissension from the denial of cert), Post-Newsweek Stations Orlando, Inc. (Fla. Ct. App. 2007); rejecting injunctions in cases where civil lawsuit or criminal prosecution was not pending. However, the same question may arise in civil cases where Due Process Clause provides fair trial rights.
If there are other types of leaks, however, the Supreme Court doesn’t recognize the power of the Supreme Court to stop the publication of any leaked or improperly released information. This is at least as long as the publisher didn’t participate in the original illegal theft, interception or leak. The Pentagon Papers Case (1971), where the Court refused to enforce an injunction prohibiting the publication of leaky government secrets. However, it did not rule on whether such publishing could lead to criminal prosecutions. In Florida Star v. B.J.F. The Court ruled (1989) that the publication of the name and address of a victim of rape that was incorrectly released by police could not be civilly held liable to a newspaper. In addition, Bartnicki v. Vopper (2001), the Court held that a radio talk show host couldn’t be held civilly liable for “intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue,” at least where the host “did not participate in the interception, but … did know—or at least had reason to know—that the interception was unlawful.” Here’s my brief analysis of Justice Wood’s decision.
[1.]The core of this analysis was the conclusion that the material wasn’t “a matter for public concern”.
[T]he court rejects the Times’ position that Project Veritas’ attorney-client communications are a matter of public concern…. [S]Many things aren’t for the public to consider and consume. These memoranda and many thousands more similar attorney-client privilege documents are found in all of the nation’s homes, offices and businesses. They are between an attorney (client) and are not subject to public scrutiny. It doesn’t matter who the client or attorney is. The content of this advice may not be relevant to the Court’s analysis. However, these memoranda contain the typical, common, and basic advice between an attorney and a client that is almost always given in America at every major media outlet.
The public cannot have access to information about a client who seeks advice from counsel. It is not the public’s business to be privy to the legal advice that this plaintiff or any other client receives from its counsel…. [I]t is quintessentially personal, not public, in nature….
Evidently, memoranda by themselves are not of public concern. Therefore, attorney-client privilege prevails. This does not mean Project Veritas, or any of its journalistic techniques are of no public interest. The Times has the right to research, investigate, interview and photograph Project Veritas, as well as its journalistic methods, but they must not use Project Veritas attorney-client privilege memoranda.
This court’s protection order is not an impermissible prior restraint. As important as the First Amendment’s protection against prior restraints is, on the present facts, the erosion of the attorney-client privilege is a far more imminent concern…. In the disclosure of confidential information to the public, there is also a concern about the privacy and freedom of communication between client and attorney. [“]”Hit and Run” journalism does not have the same protections as speeding on a sidewalk. (Greenberg v CBS Inc., 69 AD2d 700, 2d Dept 1979] Steadfast fidelity to, and vigilance in protecting First Amendment freedoms cannot be permitted to abrogate the fundamental protections of attorney client privilege or the basic right of privacy…. [I]It would be indeed a Pyrrhic victory in support of the great principles and freedom of expression, if Amendment’s protection of media’s almost unfettered rights to broadcast public issues was confused with attempts to constitutionalize publication of private, confidential communication.
But it was clear to me that such an analysis cannot be reconciled. Bartnicki v. Vopper:
- Both cases involved a communication that was of concern to the public. (In BartnickiHere, the plans of union leaders were to commit crime.
- Both parties were able to understand the other’s communication and considered it confidential.
- It is generally “not the public’s business to be privy to” cell phone conversations between people, whatever the subject of the conversation, just as the public generally isn’t privy to attorney-client-privileged communications.
However, Bartnicki Because the court found that speech is protected against any subsequent liability,
[T]The conversation’s subject was of concern to the public. If the statements about the labor negotiations had been made in a public arena—during a bargaining session, for example—they would have been newsworthy. The same would hold true for Kane if Bartnicki made the exact statements to Kane even though they believed that the other two were speaking alone.
The same logic seems to apply to the speech in, it appears to me. Project Veritas.
[2.]Also, the court cited the Times as a “litigation opponent” to the Project.
The court finds that the attorney-client relationship between Benjamin Barr and Project Veritas has been undermined by counsel’s confidential legal advice and thought processes being in the hands of a litigation adversary, and the subject of a request for public comment….
This act by the Times to obtain and publish the confidential privileged memoranda can only be deemed to have prejudiced the rights of the plaintiff by directly compromising the confidential legal advice rendered by counsel…. [T]There are many different ways in which the Times, using its memoranda knowledge in litigation, has achieved strategic advantage. The knowledge gained by the Times can be used to help witnesses prepare responses for deposition questions. The Times’ lawyers now have the information they need to create deposition topics and strategies based on what the memoranda contain. Indeed, in … [its article about the privileged memoranda], the Times itself noted that the memoranda “give new insight into the workings of the group at a time when it faces potential legal peril in the diary investigation—and has signaled that its defense will rely in part on casting itself as a journalistic organization protected by the First Amendment.” That “insight” for the Times is unquestionably concomitant prejudice to the plaintiff….
The memoranda in the case were written nearly four years prior to the Times publishing them. However, they contain similar themes and accusations by Project Veritas that are repeated throughout the memoranda. The subject article’s own reporting by the Times confirms that Project Veritas has sued The New York Times for a 2020 story it published about a video they made claiming voter fraud in Minnesota. Although most news organisations consult lawyers frequently, Project Veritas has some questions for its legal staff that show an interest in using techniques outside the norm of traditional reporting. …
The Times “shot across their bow” to their litigation opponent cries for court intervention to preserve the integrity of the judiciary process and remedy “unreasonableannoyances, expense, embarrassments, disadvantages, or other prejudices” created by the Times on November 11, 2021 [the date it published the attorney-client privileged information]….
Even if it had an unfair advantage because the Times was able to access the adversary’s attorney client privileged materials and the Times published those documents, I believe this would only justify the Times being sued. In effect, a default judgement against the Times would result in a libel suit. While I doubt that this would be sound, it is the most severe type of litigation sanction. This theory stems from Project Veritas as the Times’ litigation opponent. This is not enough to justify injuncting the Times from being published.
[3.] Some have also argued that the underlying New York statute, N.Y. Civil Practice Law & Rules § 3103, doesn’t authorize an injunction such as Justice Wood’s, and addresses only protective orders limited to documents released through coercive discovery (on the theory that, when the legal system requires a party to disclose documents to an adversary, it can attach conditions to that disclosure).
But it appears that New York courts have read § 3103 more broadly than that; see Lipin v. Bender (N.Y. 1994), where the plaintiff had taken some of defendant’s attorney-client privileged papers that were left unattended at a conference room table—the court concluded that this justified an order under 3103(c), though the plaintiff’s obtaining of the records had nothing to do with the use of state coercive power and the mandatory disclosure process. Court’s reasoning was focused on the intrusion upon privileged communications rather than misuse of discovery devices. “There is no doubt that plaintiff knowingly, deliberately, intruded into plainly personal communications between defendants, their attorney and themselves, and by keeping and hand-copying these documents, she preserved the information she had gleaned for maximum benefit to herself (and maximum disavantage to defendants). So I think the strongest argument against Justice Wood’s order is the First Amendment argument, not the internal limitations of § 3103.
We’ll wait to see what happens in appeal. The earlier appeal to the original restraining orders was rejected by a single judge. However, this shouldn’t stop the New York appellate court from examining the case again now that Justice Wood has made a complete decision.